NATIONAL INSURANCE COMPANY LTD Vs. K S VELUNNY

JUDGEMENT

(1.) FIRST respondent in this appeal sustained injuries during the course of employment and he claimed a compensation of Rs. 2,36,472/ -. Commissioner for Workmen's Compensation found that the accident arose during the course of employment and he is entitled to compensation and awarded a compensation of Rs. 1,54,703/- with interest. Only dispute is regarding the quantum of compensation.

(2.) EXT. A5 wound certificate shows the following injuries:

(3.) THE tribunal examined the claimant and found that there was shortening of legs and he can walk only with special shoes and it will be very difficult for him to drive the vehicle. He was a driver by profession. It is a non-schedule injury. Section 4 (1) (c) (ii) of the Workmen's Compensation Act provides that in the case of a non-schedule injury, loss of earning capacity should be fixed on the basis of the certificate of qualified medical practitioner and Explanation II provides that medical practitioner can assess the disability in proportion to the injuries. Here, there is not only fracture tibia, but, he had a fracture of femur also. Loss of earning capacity for the amputation of leg under the Workmen's Compensation Act is 70 to 80%. Here, there was no amputation, but, at the same time, there are serious difficulties and physical disability is different from earning capacity. Considering Explanation II, loss of earning capacity has to be assessed in proportion to the earning capacity fixed in first schedule. Considering these difficulties, loss of earning capacity can be only at 50% as per the injuries mentioned in the application. Therefore, compensation payable will be Rs. 2000 x 60 x 184. 17 x 50 =100 Rs. 1,10,502/= with statutory interest as awarded by the commissioner from 27/9/1995 (date of accident) till its deposit, that is, 6/9/2002. If excess amount was deposited, it should be refunded to the insurance company and if any amount is due it should be deposited by the insurance company. Appeal is allowed partly. The direction of refund of Rs. 25,000/- to the third respondent insurance company made by the Commissioner is not disturbed.